Citation Nr: 1308934
Decision Date: 03/15/13 Archive Date: 03/25/13
DOCKET NO. 06-29 302 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a disability manifested by fatigue, to include as due to an undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C.A. § 1117, or due to the service-connected sleep apnea.
2. Entitlement to service connection for irritable bowel syndrome and long-term diarrhea, to include as due to an undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C.A. § 1117.
3. Entitlement to a compensable disability rating for allergic rhinitis, to include sinus headaches and nosebleeds (also claimed as severe allergy symptoms), to include restoration of a 10 percent rating as of July 1, 2008.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. N. Moats, Counsel
INTRODUCTION
The Veteran served on active duty from July 1977 to October 1981, and January 1982 to August 2003, during both peacetime and the Persian Gulf War Era. The Veteran served in the Southwest Asia Theater of operations from December 7, 1994, to March 8, 1995.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2005 and April 2008 rating decisions issued by the Department of Veterans Affairs (VA), St. Petersburg, Florida, Regional Office (RO). The March 2005 rating decision denied service connection for a disability manifested by fatigue. The April 2008 decision denied service connection for irritable bowel syndrome and long-term diarrhea and reduced the disability rating for the service-connected allergic rhinitis from 10 percent to 0 percent, effective July 1, 2008. In regard to the reduction, the Board notes that the due process protections of 38 C.F.R. § 3.105(e) (2012) do not apply to the Veteran, since the reduction did not involve a reduction in the overall amount of compensation payable to the Veteran. See VAOPGCPREC 71-91.
In October 2009, the Board remanded the fatigue claim to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. Subsequently, in December 2011, the Board remanded all of the issues on appeal for further development. The matter has returned to the Board for appellate review.
The issues of service connection for irritable bowel syndrome and long-term diarrheas and a compensable disability rating for allergic rhinitis, to include sinus headaches and nosebleeds (also claimed as severe allergy symptoms), are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC.
FINDING OF FACT
Resolving all doubt in favor of the Veteran, chronic fatigue is proximately due to his service-connected positional obstructive sleep apnea with periodic limb movement disorder.
CONCLUSION OF LAW
The criteria for a grant of service connection for chronic fatigue have been met, as secondary to the service-connected positional obstructive sleep apnea with periodic limb movement disorder. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2006), (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION
As the Board's decision to grant service connection for chronic fatigue herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].
Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R.
§ 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).
The Board notes that the provisions of 38 C.F.R. § 3.310 were amended during the pendency of the Veteran's appeal, effective October 10, 2006; however, the new provisions state that service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Although the stated intent of the change was merely to implement the requirements of Allen, supra, the Board finds that the new provisions amount to a substantive change to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R.
§ 3.310, which is more favorable to the Veteran as it does not require the establishment of a baseline level of disability before an award of service connection may granted. See generally, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Service treatment records show that, in June 2002, the Veteran underwent an evaluation for chronic fatigue. After examining the Veteran, the assessment was fatigue, no evidence of allergies; consider chronic fatigue syndrome versus non-restorative sleep. The Veteran filed a claim for chronic fatigue syndrome in September 2003, one month after his retirement from active duty. He was afforded a VA general medical examination in August 2004. The Veteran reported a history of chronic fatigue, which began while stationed in Saudi Arabia in 1994. After examining the Veteran as well as providing a sleep study, the examiner diagnosed mild positional obstructive sleep apnea with periodic limb movement disorder (PLMS), but was silent with respect to any separate fatigue disability.
Another VA examination performed in January 2005 for the Veteran's prostate and allergic rhinitis indicated that the Veteran may have sleep apnea that may cause fatigue and it was unlikely to be due to his allergies per se.
The Veteran was afforded another VA examination in November 2006. At such time, he admitted that he had never been diagnosed with chronic fatigue syndrome. After reviewing the claims file and examining the Veteran, the examiner failed to provide any diagnosis pertaining to the Veteran's fatigue.
In October 2009, the Board remanded this issue for a new VA examination as the November 2006 VA examination was deficient because the examiner failed to address the Veteran's complaints of fatigue and offer an opinion as to whether his fatigue symptomatology could be attributed to his service-connected sleep apnea, some other chronic disability or an undiagnosed illness as a result of his service in the Southwest Asia theatre of operations.
The Veteran was afforded another VA examination in January 2010. After examining the Veteran and reviewing the claims, the examiner determined that the Veteran did not meet the criteria for chronic fatigue syndrome. The examiner indicated that the Veteran's chronic fatigue was part and parcel of the combination of chronic allergies, colitis, periodic limb movements during sleep (PLMS), and chronic pain syndrome.
In the December 2011 remand, the Board determined that the January 2010 examination was deficient because the examiner did not provide any supporting rationale for the opinion provided. Additionally, the VA examiner did not address whether the Veteran's chronic fatigue is due to or aggravated by his service-connected sleep apnea. Thus, the issue was remanded again for another VA examination. The examiner was specifically asked to provide an opinion as to whether the Veteran's chronic fatigue is separate and distinct from his service-connected sleep apnea, but was caused or aggravated beyond the natural progress by such service-connected disability.
A VA medical opinion was accomplished in September 2012. After reviewing the claims file, the examiner opined that the Veteran's chronic fatigue was at least as likely as not related to his service-connected sleep apnea. Although fatigue is a presentation of sleep apnea, the examiner found that there were several factors in the Veteran causing fatigue such as chronic allergies, colitis, PLMS, and chronic pain syndrome as mentioned on the previous January 2010 VA examination. The examiner concluded that it was not possible to determine the precise percentage each risk factor plays in the overall condition of chronic fatigue.
In statements of record, the Veteran has consistently asserted that he has felt fatigued since he retired from service. In support of his claim, the Veteran also submitted lay statements from fellow service-members and a co-worker which indicated that the Veteran always appeared tired and fatigued.
The Board finds that, when resolving the benefit of the doubt in favor of the Veteran, service connection for chronic fatigue is warranted. Service treatment records document complaints of fatigue and the Veteran has consistently complained of fatigue since service. However, the main question appears to be whether the Veteran has a separate and distinct fatigue disability or whether it is part and parcel, i.e., a symptom, of his already service-connected sleep apnea. In answering this question, the Board finds it significant that the most recent VA examinations and opinions in January 2010 and September 2012 both indicated that several factors played a part in the Veteran's fatigue. Specifically, both examiners appeared to indicate that the Veteran's fatigue was separate from this sleep apnea as other factors contribute to it as well. In other words, it does not appear to be just a symptom of his sleep apnea. As such, the Board determines that, when resolving the benefit of the doubt in favor of the Veteran, he does have a separate and distinct disability of chronic fatigue. Moreover, the most recent September 2012 VA opinion found that his chronic fatigue was at least as likely as not related to his service-connected sleep apnea.
Therefore, based on the September 2012 VA opinion, service connection is warranted for chronic fatigue as secondary to the Veteran's service-connected positional obstructive sleep apnea with periodic limb movement disorder. In reaching this conclusion, the Board finds that the evidence is in at least a state of equipoise. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for chronic fatigue, as secondary to service-connected positional obstructive sleep apnea with periodic limb movement disorder, is granted.
REMAND
A review of the record indicates that further development is necessary with respect to the remaining issues on appeal. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).
In the December 2011 remand, the Board directed the agency of original jurisdiction (AOJ) to obtain outpatient treatment records from the VA Medical Center (VAMC) in Pensacola, Florida, from November 2007 to the present. However, a review of the claims file as well as the Veteran's Virtual VA electronic file indicates that these records have not been obtained. Thus, in order to comply with the Board's December 2011 remand, the AOJ must take additional action to obtain these records and any additional VA treatment records. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998).
With respect to the claim for a compensable rating for allergic rhinitis, at the April 2012 VA examination, the Veteran indicated that he had been receiving ongoing treatment for about five years until April 2011 from his private allergist, C.C., M.D. While a couple of treatment records from Dr. C.C. dated from 2007 and 2008 have been submitted by the Veteran, the remaining records have not been requested. As such, the AOJ should contact the Veteran to obtain appropriate authorization so that these records can be obtained. See 38 C.F.R. § 3.159(c)(1).
After obtaining VA and private treatment records, the AOJ should review the additional evidence and determine whether another VA examination is necessary to address the severity of the Veteran's allergic rhinitis.
Moreover, in the December 2011 remand, the Board also directed that the Veteran be afforded a VA examination for a disorder manifested by the symptoms of irritable bowel syndrome and long-term diarrhea, to include as due to an undiagnosed illness or other qualifying, chronic disability, pursuant to 38 U.S.C.A. § 1117. The examiner was directed to identify any objective evidence of the Veteran's claimed irritable bowel syndrome and long-term diarrhea; render a diagnosis with respect to each claimed symptom which is due to a known clinical diagnosis; and, provide an opinion with respect to each currently diagnosed disorder as to whether it is at least as likely as not that the disorder is etiologically related to the Veteran's military service. The examiner was also asked to identify any objectively demonstrated symptoms that are not attributable to a known clinical diagnosis and whether such constitute a medically unexplained chronic multisymptom illness in accordance with regulations pertaining to the criteria under 38 U.S.C.A. § 1117 for a chronic disability due to undiagnosed illnesses from service in the Southwest Asia theater of operations during the Persian Gulf War.
While the September 2012 opinion determined that the Veteran's irritable bowel syndrome was not related to the gastroenteritis shown in service as this was a transient infection, the examiner failed to address whether the Veteran had a chronic disability due to an undiagnosed illness under 38 U.S.C.A. § 1117. The Court has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Moreover, once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, given the deficiencies described above Board finds that another VA examination should be afforded to the Veteran to determine the nature, extent and etiology of his irritable bowel syndrome and long-term diarrhea.
Accordingly, the case is REMANDED for the following actions:
1. The AOJ should contact the Veteran and obtain appropriate authorization so that additional private treatment records from Dr. C.C. may be obtained. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, such should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).
2. The AOJ should obtain the Veteran's treatment records from the VAMC in Pensacola, Florida, dated from November 2007 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).
3. After obtaining the above VA and private treatment records, the AOJ should review the additional evidence and determine whether another VA examination is necessary to address the severity of the Veteran's allergic rhinitis.
4. After all outstanding records have been associated with the claims file, schedule the Veteran for a VA examination by a medical professional with the appropriate expertise to determine the nature and etiology of the Veteran's claimed irritable bowel syndrome and long-term diarrhea.
The examiner must review the claims file before completing the examination report.
The examiner should identify any objective evidence of the Veteran's claimed irritable bowel syndrome and long-term diarrhea; render a diagnosis with respect to each claimed symptom which is due to a known clinical diagnosis; and, provide an opinion with respect to each currently diagnosed disorder as to whether it is at least as likely as not that the disorder is etiologically related to the Veteran's military service.
The examiner should also specifically identify any objectively demonstrated symptoms that are not attributable to a known clinical diagnosis and whether such constitute a medically unexplained chronic multisymptom illness. The examiner should further indicate whether such disabilities existed for 6 months or more or whether they exhibit intermittent worsening over a 6 month period.
The examiner should provide the supporting rationale for each opinion expressed with consideration of the medical and lay evidence of record.
5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the remaining issues on appeal should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs